B.C.MISRA, J. - (1.) THIS order will dispose of three first appeals from Orders Nos. 92, 93 and 94 of 1969, which have raised a common question of law and can be disposed of together. The material facts of the case giving rise to the appeals are that one Maharaj Narain Saxena died on 28th Oct,, 1959. On or about 10th June, 1966, the appellant before me filed three separate petitions under S. 372 of the Indian Succession Act for grant of succession certificate to realise various debts and securities mentioned in the petitions. These petitions were allowed by the subordinate judge (exercising jurisdiction) by orders dated 30th April, 1968. On the material on record, he allowed the petition and ordered the grant of succession certificate subject to the production of a certificate of clearance in respect of the estate duty of the deceased under S. 56(2) of the ED Act. It is common ground that the appellant has neither applied for nor obtained the requisite certificate. On the other hand, he has moved an application giving rise to the present appeals to the Court below alleging that under S. 73A of the ED Act, 1953, no proceedings can be commenced for levy of estate duty on the estate of the deceased after the expiry of five years since the death and since Maharaj Narain Saxena died on 28th Oct., 1959, no estate duty could be legally levied and, therefore, the petitioner be excused from complying with the order to produce the certificate of clearance in respect of the estate duty. The Court below by the impugned order has rejected the applications of the appellant. Feeling aggrieved, the appellant has filed the present appeals. Mr. Sharma, learned counsel for the appellant, has taken me through the relevant provisions of law. The ED Act, 34 of 1953, received the assent of the President on 6th Oct,, 1953, and it has been enforced w.e.f. 15th Oct,, 1953, vide notification No. 1882 dated 8th Oct,, 1953. Sec. 56 of the Act as amended reads as follows : "(1) In all cases in which the grant of representation is applied for - (a) the executor of the deceased shall, to the best of his knowledge and belief, specify in an appropriate account annexed to the affidavit of valuation filed in Court under S. 19 -I of the Court - fees Act, 1870, all the property in respect of which estate duty is payable upon the death of the deceased and shall deliver a copy of the affidavit with the account to the Controller, and (b) no order entitling the applicant to the grant of representation shall be made upon his application until he has delivered the account prescribed in cl. (a) and has produced a certificate from the Controller under sub -s. (2) of S. 57 or S. 67 that the estate duty payable in respect of the property included in the account has been or will be paid, or that none is due, as the case may be. (2) In all cases in which a grant of succession certificate is applied for, a copy of the application shall be furnished by the applicant to the Controller and no order entitling the applicant to the grant of such a certificate shall be made upon his application until he has produced a certificate from the Controller under sub -s. (2) of S. 57 or sec -tion 67 that the estate duty payable in respect of the property mentioned in the application has been or will be paid, or that none is due, as the case may be."
(2.) THE Act 34 of 1953 before its amendment had a corresponding section which was then numbered as 57. It contained a similar provision but its application was restricted to the grant of representation within six months of the death of the deceased and it applied to executors. It did not contain any specific provision in respect of grant of succession certificate. There was no provision corresponding to S. 73A of the Act. The amendments were, however, made by the Estate Duty (Amendment) Act, 33 of 1958, which received the assent of the President on 19th Sept., 1958. By S. 21 of the amending Act, the then existing ss. 56 to 65 were deleted and were substituted by another set of sections commencing from 56 to 65 of the present Act. By this amending Act S. 73A as it exists now was inserted in the Act by S. 25. It is significant that in the newly enacted S. 56, the period of six months (which had been prescribed by the corresponding provision contained in S. 57 of the Act prior to the amendment) has been deleted and the provision states that in all cases in which grant of representation is applied for (sic) ; sub -s. (1) deals with a representation of the executor ; sub -s. (2) makes a special reference to the grant of a succession certifi - cate and requires a copy of the application to be furnished by the applicant to the Controller.
(3.) SEC . 57 of the present Act has an important bearing. It is to the effect that estate duty shall be due from the date of the death of the deceased and the Controller may at any time after the receipt of account delivered under S. 53 or S. 56, proceed to make in a summary manner a provisional assessment of the estate duty payable by the person delivering the account on the basis of the account so delivered (emphasis supplied). Sub -s. (4) also provides that no appeal shall lie against a provisional assessment. Sec. 60 has made a provision for levy of a penalty for failure to comply with the provisions, inter alia, of S. 56. It is significant to notice that in S. 59 a provision has been made that if the Controller has reason to believe that by reason of the omission or failure on the part of the person accountable to submit an account of the estate of the deceased under S. 53 or s. 56, then he may at any time subject to the provision of S. 73A require the person accountable to submit an account as required under S. 53 and may proceed to assess or reassess such property as if the provisions of S. 58 applied thereto.;